Ex Parte Bontemps et al

Patent Trial and Appeal Board

Aug 22, 2016

13263746 (P.T.A.B. Aug. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/263,746 01/26/2012
65913 7590 08/24/2016
Intellectual Property and Licensing
NXPB.V.
411 East Plumeria Drive, MS41
SAN JOSE, CA 95134
FIRST NAMED INVENTOR
Joep J.M. Bontemps
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
81374699US05 5753
EXAMINER
HAN, JONATHAN
ART UNIT PAPER NUMBER
2818
NOTIFICATION DATE DELIVERY MODE
08/24/2016 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
ip.department.us@nxp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOEP J.M. BONTEMPS, JAN JACOB KONING,
CASPER VAN DER A VOORT, and
JOZEF THOMAS MARTINUS VAN BEEK
Appeal2015-004186
Application 13/263,746
Technology Center 2800
Before MAHSHID D. SAADAT, JOHNNY A. KUMAR, and
JON M. JURGOV AN, Administrative Patent Judges.
JURGOVAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek review under 35 U.S.C. § 134(a) from the Final
Rejection of claims 1, 2, and 4-17.2 We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm. 3
1 Appellants identify NXP B.V. as the real party in interest. (App. Br. 1.)
2 Claim 3 was canceled.
3 Our Decision refers to the Specification filed Oct. 9, 2011 ("Spec."), the
Final Office Action mailed June 9, 2014 ("Final Act."), the Appeal Brief
filed Oct. 9, 2014 ("App. Br."), the Examiner's Answer mailed Jan. 30, 2015
("Ans."), and the Reply Brief filed Feb. 10, 2015 ("Reply Br.").
Appeal2015-004186
Application 13/263,746
STATEMENT OF THE CASE
The claims are directed to a micro-electromechanical system (MEMS)
resonator device. (Spec. 1: 5---6.)
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A bulk-acoustic-mode MEMS resonator having a
principal vibration direction, comprising:
a resonator body having a first portion with a first physical
layout, and a layout modification feature having a second
physical layout, wherein the layout modification feature and the
first portion have different lateral cross-sections along the
principal vibration direction, wherein the first physical layout
differs from a first design layout by a first geometric offset in
response to process variations during fabrication of the resonator,
and the second physical layout differs from a second design
layout by a second geometric offset in response to the process
variations, wherein a resonant frequency of the bulk resonator is
a function of a relationship between the first geometric offset and
the second geometric offset.
REJECTION
Claims 1, 2, and 4--17 stand rejected under 35 U.S.C. § 102(b) based
on Wittwer et al. (US 7,652,547 Bl, issued Jan. 26, 2010). (Final Act. 2-5.)
ANALYSIS
Independent Claims 1 and 12
Issue 1: Did the Examiner err by finding Wittwer discloses a MEMS
resonator with a first portion and a layout modification feature having
"different lateral cross-sections"?
The Examiner finds Wittwer' s MEMS resonator discloses a first
portion (i.e., the resonator mass 14), and a layout modification feature (i.e.,
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Application 13/263,746
the holes 46) having a different lateral cross-section than the first portion
(i.e., a cross-section that includes the holes 46 has a different physical layout
than a cross-section taken through mass 14). (Final Act. 2-3; Ans. 2-3
(citing Wittwer Figs. 4A and 4B; col. 2:22-53).) Appellants contend
Wittwer does not disclose the claimed "different lateral cross-sections,"
because Wittwer' s holes in the resonator mass cannot give rise to a
reflection interface so that the different portions of the resonator each give
rise to a respective standing wave. (App. Br. 5; Reply Br. 1-2.) Appellants
further argue their Specification distinguishes between two different layout
modification feature embodiments: one that is a hole or slit, and another that
is a different lateral cross-section having a change in width or thickness;
thus, Wittwer' s holes cannot be equated to a different lateral cross-section.
(App. Br. 5---6.) Appellants contend the Examiner's interpretation of "lateral
cross-section" to include holes is unreasonably broad, because the plain
meaning of "lateral cross-section" is the intersection of a body in three-
dimensional space with a plane taken from a side "along the principle
vibration direction," which limits the claims to differences in width or
thickness. (Reply Br. 2.)
Appellants' contentions regarding Wittwer' s lack of a standing wave
and lack of lateral cross-sections with a difference in width or thickness are
not persuasive of Examiner error in the rejection, because the contentions
are not commensurate with the scope of claims 1 and 12. Appellants'
Specification provides several examples of layout modification features
(Spec. 13:15-21), however, claims 1and12 are not limited to such features.
(See In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993): Although the
claims are interpreted in light of the specification, limitations from the
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Application 13/263,746
specification are not read into the claims.) We agree with the Examiner's
finding that the broadest reasonable interpretation, which is consistent with
Appellants' disclosure, of "different lateral cross-sections" does not preclude
a first lateral cross-section through holes ( 46) that has a different physical
layout than a second lateral cross-section taken through a solid portion of
mass (14). (Final Act. 2-3; Ans. 2-3 (citing Wittwer Figs. 4A and 4B; col.
2:22-53).) (See In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1369
(Fed. Cir. 2004): "[T]he PTO is obligated to give claims their broadest
reasonable interpretation during examination.") Appellants' contention in
the Reply Brief, page 2, that the Examiner's reliance on Wittwer' s holes to
disclose the claimed layout modification feature constitutes a new ground of
rejection is not found persuasive, because the Examiner cited the holes (46)
as the layout modification feature in the Final Office Action. (Final Act. 2.)
Issue 2: Did the Examiner err by finding Wittwer discloses a ''first
physical layout differs from a first design layout by a first geometric offset"?
Appellants contend claims 1 and 12 require a "first geometric offset"
that is process dependent, whereas Wittwer' s disclosure of a MEMS
resonator with a square mass (14) is silent regarding a first physical layout
that differs from a first design layout by a first geometric offset in response
to process variations. (App. Br. 6-7; Reply Br. 2-3.) We are unpersuaded
of error in the Examiner's rejection, and agree with the Examiner's finding
that Wittwer' s edge bias of the MEMS resonator, or deviations in the lateral
dimensions of the mass compared to the desired lithography pattern,
discloses first physical layout (i.e., mass 14) that differs from a first design
layout (i.e., desired photolithography pattern) by a first geometric offset in
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Application 13/263,746
response to process variations during fabrication of the resonator (i.e., edge
bias) (Final Act. 2-3; Ans. 3--4 (citing Wittwer col. 9:19-35)), which is
consistent with Appellants' disclosure of "geometric offset" (Spec. 2: 15-
17).
Issue 3: Did the Examiner err by finding Wittwer discloses a "second
physical layout differs from a second design layout by a second geometric
offset"?
Appellants contend Wittwer's disclosure of openings (46) in the mass
(14) is silent regarding a "second geometric offset" for the second physical
layout. As discussed regarding the "first geometric offset" supra, we agree
with the Examiner's finding that Wittwer discloses a process dependent edge
bias offset for the mass (14), and Wittwer further discloses the edge bias
offset also affects the holes ( 46), which we agree discloses a second
geometric offset for the second physical layout (Final Act 2-5; Ans. 3--4
(citing Wittwer col. 9:63 - col. 10: 14)).
Accordingly, we sustain the Examiner's rejection of independent
claims 1and12 under 35 U.S.C. § 102(b) based on Wittwer.
Remaining Claims
No separate arguments are presented for dependent claims 2, 4--11,
and 13-17 (see App. Br. 7), therefore we sustain their rejection for the
reasons stated with respect to independent claims 1 and 12.
DECISION
We affirm the Examiner's rejection of claims 1, 2, and 4--17 under 35
U.S.C. § 102(b).
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Application 13/263,746
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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